The Chronicle recently published an op-ed by Professor Scott Douglas Gerber ("This could be Clarence Thomas' moment," Page B9, Nov. 18) in which Gerber identified the current term of the U.S. Supreme Court as Justice Clarence Thomas' "best chance for leaving a lasting legacy on the court." Noting that before the court are challenges to Section 5 of the Voting Rights Act in Shelby County, Alabama, v. Holder and to the consideration of race in college admissions in Fisher v. Texas, Gerber stated that "the nation's highest ranking African-American jurist has been provided with an unprecedented opportunity to commit the court to the notion of color-blind constitutionalism for which he has been arguing for most of his professional life."

Of particular interest are three observations made by Gerber. First, his description of Thomas as the "nation's highest ranking African-American jurist" indicates that, for Gerber, the justice's race matters. That label and description is in obvious tension with Gerber's declaration that "each of us, no matter the color of our skin, should be treated as an individual and not as a member of a racial or ethnic group."

Second, Gerber notes that Thomas' concurring opinion in the court's 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 quoted the following passage from Justice John Marshall Harlan's dissent in Plessy v. Ferguson: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." For the sake of accuracy, and in an effort to promote a more complete and nuanced understanding of Justice Harlan's axiom, it must be noted that the just-quoted passage in Harlan's 1896 opinion was preceded by the following color-aware language: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty."

Third, Gerber states that if Thomas writes the majority opinion in Shelby County and/or Fisher "he will have accomplished his 'dream' (to borrow from Rev. Martin Luther King, Jr.): He will have reminded the American people that each of us, no matter what the color of our skin, should be treated as an individual and not as a member of a racial or ethnic group."

In his famous "I Have a Dream" speech delivered on Aug. 28, 1963, at the Lincoln Memorial in Washington, D.C., King famously said, "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character." An examination of the entire "I Have a Dream" speech reveals that King's dream was just that, an aspiration that did not blind him to the lived realities of African-Americans subjected to racist classifications and subordination in every aspect of their lives. Woven into the very fabric of his speech was an expressed and unmistakable awareness and condemnation of what King called the crippling "manacles of segregation and the chains of discrimination." In a 1965 speech King told his audience that "not long after talking about that dream" in 1963 "I started seeing it turn into a nightmare." And in a 1965 interview King was asked if he felt it was "fair to request a multibillion-dollar program of preferential treatment for the Negro, or for any other minority group?" King's response: "I do indeed." These particulars render problematic the invocation of King by proponents of color-blindness.

Turner is the Alumnae Law Center Professor of Law at the University of Houston Law Center. The views of the author do not reflect the views of the UH system.